What’s worse – IRS abuse or a special prosecutor?

posted at 4:01 pm on June 21, 2014 by Ed Morrissey

Talk about the lesser of two evils. With the Obama administration stonewalling Congress on the IRS scandal (and Fast and Furious, and Benghazi, and …), House hearings have produced a continuous stream of outrages, including yesterday’s jaw-dropping display of arrogance from IRS Commissioner John Koskinen, who smirked as he declared that the IRS didn’t owe an apology to anyone for its targeting of conservatives. Clearly, the Department of Justice under Eric Holder has no interest in investigating abuses of power that target Barack Obama’s opponents, or investigating much of anything except how to move Gitmo detainees into federal courts for civil trials. And the House on its own hasn’t much power to do anything except expose the abuses and the arrogance.

Ron Fournier wrote a week ago that it’s time for a special prosecutor, and has been banging the drum on Twitter ever since. He offered this advice to endangered Senate Democrat Mark Pryor today:

Carl Cannon wrote last night that he’s become convinced of the necessity, but only because it has become the least bad option. He gives a lengthy read on the reasons why both parties allowed the special-prosecutor law to lapse after a series of politically abusive, ridiculously lengthy, and almost completely futile investigations discredited the position:

Watergate begat the independent counsel system, enacted by law as a post-Watergate reform by a Congress burned by the memory of the “Saturday Night Massacre” — Nixon’s firing of one attorney general after another until he found someone willing to sack special prosecutor Archibald Cox. It was only a temporary victory for the beleaguered president, but it convinced most Americans — and not just Democrats — that the Justice Department couldn’t be trusted to investigate executive branch wrongdoing.

Problems with the new reform arose from the start, however. Theoretically, special prosecutors were subject to judicial oversight, but in practice they were on their own. With no bosses, no time constraints, and no limitations on the scope of their probe, special prosecutors tended to turn into Inspector Javiers — if the villain of “Les Misérables” had had an unlimited budget and no superior.

As the abuse of executive power gave way to the abuse of prosecutors with more power than British kings wielded at the time of the American Revolution, it became clear that the reform-minded liberals swept into power in the post-Watergate Democratic landslide of 1974 didn’t actually know more than the Framers.

It took a while for Democrats to fathom the problem, which was that many of the independent counsels appointed in the 1980s lack the trait known as “prosecutorial discretion.” This was understandable: many of them had never been prosecutors. And as independent counsels they contended with none of the normal checks and balances in courthouse politics — because they never had to face the voters. Accountable to no one, they didn’t balance the alleged transgressions of their target with more serious cases — because they didn’t have other cases.

Still, Cannon wonders whether the time has arrived to relaunch the statute:

But the question is how the American people are supposed to discern the truth. One way to get those missing emails would be with a federal inspector general complete with subpoena powers. Another — and God help me for saying this — would be a special prosecutor.

I’ve raised the issue a few times too, in relation to this and other scandals. Cannon’s right about the abuse of power, and the history he presents is damning. The solution to this isn’t just to hold our noses and let loose another abuse of power, but to rewrite the independent prosecutor statutes so that its authority can be checked when abused.

How to do this? First, it’s important to understand that the authority to investigate the executive branch resides with the legislative branch, and not the judiciary or some outsider with plenary powers and no oversight. Independent counsels should be accountable to Congress and not just a judge, although the actions of the prosecutor/investigator should be monitored by the judiciary just as it would be in any other criminal investigation. A new special-prosecutor law should have as its oversight the combined House and Senate Judiciary Committees, or the joint committees for the relevant function in the executive branch (House Ways and Means and Senate Finance for the IRS, for example).

That way, the conduct of the special prosecutor will have more direct political consequences for Congress and the members of those panels, while Congress would retain its authority in an area in which it should have the full responsibility rather than pass the buck to an unaccountable prosecutor. It would be messy and political, but at least it would use legitimate authority in the legislative branch to own and constrain the use of a power that’s only legitimate to that branch. Even more, it would allow public outrage over executive-branch conduct to pressure Congress to use an effective option to constrain the executive, making both branches more responsive to citizens.

I’d bet we’d see less smirking like this with a system like that at the ready:

What we have now is obviously not working any better than what we had in the post-Watergate special-prosecutor era. Just as in Watergate, the DoJ is a political arm of the administration and uninterested in doing its job independently to investigate and prosecute abuses of power. Congress has to find a way to effectively exercise its own checks and balances on executive power to prevent and punish those abuses. Hearings alone won’t do it, and it’s long past time for Congress to start thinking creatively about its other options.

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I’m truly amazed that AG Holder hasn’t appointed a special prosecutor; I thought he would jump at the chance to appoint someone like Bill Clinton or Janet Reno or Jimmy Carter to the post. That would follow the current administration’s playbook.

People like Eric Holder, Lois Lerner, and John Koskinen deserve to have their professional careers and their personal lives ruined. I want them and their families to forever suffer the consequences of their crimes against the American People. If a special prosecutor is what it takes, then do it. And do it now.

“Oversight” does not include prosecution, which is a function of the executive, not the legislature. Any high school government teacher could tell you that.

Well, maybe not if they are from public school, but still.

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The Attorney General can appoint a SP at any time. He can also fire him at any time.

The fact that we elected a corrupt President who appointed corrupt people to his Administration is unfortunate, but he’s already done enough damage to the Constitution. No sense seeking “solutions” that require more shredding.

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Besides, how do you propose to pass a new statute that would investigate Obama? You expect Reid to bring it up for a vote? Expect Obama to sign it?

Even if we take the Senate, it takes 2/3 of both House and Senate to override a veto. You would have better odds buying lottery tickets.

Special Prosecutors only work with somewhat honest people. We’re dealing with an administration that has no qualms about lying. When you think about when Fast and Furious took place and how they’ve refused to release anything about that, you begin to understand that they aren’t going to be threatened by anyone or anything. They’re riding out the clock on everything and they just don’t care. They don’t care about the Office of the Presidency, they don’t care about the constitution, and they certainly don’t care about the consequences.

The main reason this administration is so lawless is because we have a media complex that’s given up it’s responsibility to hold the government accountable. The press we have now has a 1st Amendment to protect them, which they’ve thrown away and have become Pravda and Izvestia. That’s their shame but they will pay for it.

Special Prosecutors only work with somewhat honest people. We’re dealing with an administration that has no qualms about lying. When you think about when Fast and Furious took place and how they’ve refused to release anything about that, you begin to understand that they aren’t going to be threatened by anyone or anything. They’re riding out the clock on everything and they just don’t care. They don’t care about the Office of the Presidency, they don’t care about the constitution, and they certainly don’t care about the consequences.

The main reason this administration is so lawless is because we have a media complex that’s given up it’s responsibility to hold the government accountable. The press we have now has a 1st Amendment to protect them, which they’ve thrown away and have become Pravda and Izvestia. That’s their shame but they will pay for it.

bflat879 on June 21, 2014 at 4:28 PM

When you look back at the grief Special Prosecutor Ken Starr got from the Clinton Mob, it’s no surprise. They did the exact same thing, and in the end, who actually got “punished”? Starr’s successor refused to indict Clinton, because he knew he would never get a conviction in D.C.

A new special-prosecutor law should have as its oversight the combined House and Senate Judiciary Committees, or the joint committees for the relevant function in the executive branch (House Ways and Means and Senate Finance for the IRS, for example).

“Oversight” does not include prosecution, which is a function of the executive, not the legislature… Any high school government teacher could tell you that.

Well, maybe not if they are from public school, but still.

Adjoran on June 21, 2014 at 4:27 PM

Spot on. State attorneys are faced with this frequently, when there is some question of conflict. An independent counsel is brought in to lead the prosecution. It’s not perfect but that’s the system. Handing anything off to the U.S. Congress is a recipe for ultimate disaster. Flip one member on a committee and the prosecutor is fired. And that’s only the tip of the iceberg of potential abuse.

They can form joint committees (see: Benghazi) and bring in counsel to supervise the investigation if they want. They can subpoena and hold hearings under oath. That’s more than enough authority to get at any question. Can they indict? No. It’s not their function — thank heavens (it’s called separation of powers for a reason).

Your point is well made.

I will say, the gratuitous slap at public school wasn’t really necessary, IMO, having been there myself and having an astrophysics + neurobiology PhD daughter with Princeton + Cornell honors degrees — who went to public school. But, otherwise, well done post.

The reason is the Democratic “Cover Up All Illegal Actions by Fellow Democrats At All Costs” Party.
RoadRunner on June 21, 2014 at 5:12 PM

Articles of Impeachment should still be enough to cool the jets on the Child-in-Chief. Let him be the third Democrat president in American history to be impeached…another historical milestone for the Democrat party.

Articles of Impeachment should still be enough to cool the jets on the Child-in-Chief. Let him be the third Democrat president in American history to be impeached…another historical milestone for the Democrat party. Newtie and the Beauty on June 21, 2014 at 5:14 PM

Not this one, buddy. He’d wear it as a badge of honor to stir up even more discontent.

“Please provide America ALL the e-mails from ALL IRS criminal bureaucRATS, including (to be convicted) criminal felons Lois Lerner and the other six IRS reprobates who conspired with OFA and the OBOZO White House to violate every law and rule restraining IRS criminal conduct. Please provide them ASAP to Darrell Issa, US House of Representatives. Thank you.”

If dear leader asks for a special prosecutor, this whole mess of a scandal will disappear down the memory hole. There will be no investigation and no leaks to the press. At least, with the congressional hearings going on, Fox has something to say about it.

Clearly, the Department of Justice under Eric Holder has no interest in investigating abuses of power that target Barack Obama’s opponents, or investigating much of anything except how to move Gitmo detainees into federal courts for civil trials.

I think getting the emails out into the public, like from Drudge or something similar… would be enough to end this administration.

I don’t think Holder is going to investigate anything, it would be a fake investigation anyway. A SP might just give them a chance to shush everything up. As soon as an investigation starts they can stop talking about it.

I want the information to be public first. Once the public knows… really knows, then figure out who to make resign.

The IRS abuse is definitely worse and will surely get worse still unless met with some sort of response.

The assignment of special prosecutor, which once was used to trick the GOP cons into believing there are two major parties in government, no longer works. Now, such an assignment just reminds the GOP conservatives what an impotent mess the GOP really is.

The likelihood of another Lawrence Walsh anointing himself eternal prosecutor is far less likely than the IRS continuing its obvious abuses of power, perjury and betrayal of our basic Constitutional protections.

We need a way to prosecute government officials when they break the law, period! Koskinen was snarky and smug testifying before Congress. He has lied repeatedly under oath and is laughing at the committees for doing so. He, along with Obama & Lerner should at least, be facing perjury charges. Holder should be impeached for abuse of power, perjury, & dereliction of duty. This entire government is the most corrupt I can remember.

But the question is how the American people are supposed to discern the truth. One way to get those missing emails would be with a federal inspector general complete with subpoena powers.

In theory they already have that as they are the individuals responsible for oversight inside an Agency and have separate prosecutorial powers to back them up. By making the individual answerable to the Executive, however, that meant that Presidents could fire them at will, as Obama has already done starting soon after he took office by firing an IG investigating an Obama crony’s influence. Other IGs took notice that Congress did not stand up for the IG’s.

The major power of the US House still has is that of granting Contract Officers spending ability. If you want to bring agencies to heel and get them to start responding, then the US House can suspend the CO’s spending power for everything from toilet paper, shotguns, FA weapons, ammo, toilet paper, pens, pencils, travel… all the way up to the Senior Executives and the large scale contract that Agencies have to help them in their work. Ground the agency, remove the helpers and require the agency to perform all of its duties without any outside help, at all.

Do that at IRS and Obamacare gets effectively grounded as the IRS doesn’t have the personnel to effectively oversee it… and that is after asking for thousands of people to help it do just that.

Do this with the entire Treasury Dept to remind them of their oversight role with the IRS. You don’t get a rogue IRS without a rogue Treasury.

As DoJ is unwilling to investigate it, curb their spending which means all of their travel is stopped for everything.

The US House can start small, with the toilet paper and other simple stuff, by suspending the lesser CO’s power… or it can start big with all the large scale contracting and SES contracts. Congress even has provisos for this as it is under the convenience of the government clauses that are in each and every single contract the government has, even those that don’t have them written in as that is what Congress wanted and got.

Yes Obama would want to inflict ‘pain’ on the American people because of this, but this is NOT A SHUTDOWN but discretionary exercise of power by the US House. It would be fun to see Obama inflict ‘pain’ because the IRS had its travel budget suspended or half of its ability to purchase toilet paper and small arms. Or to have outside ‘trainers’ and ‘speakers’ brought in to boost the ‘morale’ of the federal workers. As each of the aspects of contracting has its own CO, the House can get very, very precise in its targeting of an Agency or Department, at a very, very fine level. ID the key COs for an abusive set of offices in an Agency, suspend their power to spend, and then, as that office tries to go around that, start suspending other COs trying to help them. Congress could even begin running the training videos that were leaked from the IRS to justify its lack of oversight in federal spending… or the lack of proper accountability for internal data… lots of ways to handle this.

Or perhaps it could suspend the WH travel budget and ability to get toilet paper, pens, pencils, etc. to cut down on the golf game trips the President takes. It is a system of checks and balances, after all. If Obama wants to get petty, the US House can oblige him in return. Tit for tat works best when you have to reform an abusers as they never expect to be abused.

It’s simply not true that the House Republicans can do little: they have the power of the purse, which is the greatest power within the federal government. The problem is that when they try to use it, the Democrats and the media (BIRM) accuse them of exceeding their powers and the Republicans, whimpering, retire in disarray.

What the Republicans should do is propose a ‘sense of the House’ resolution, that in cutting off funding for the already-authorized resupply of South Vietnamese forces, the then House ‘exceeded its powers’. Let that come to a floor vote and dare the Democrats to support the claim. After which, it will be hard for them to raise the ‘exceeding its powers’ argument again.

First, it’s important to understand that the authority to investigate the executive branch resides with the legislative branch, and not the judiciary or some outsider with plenary powers and no oversight. Independent counsels should be accountable to Congress and not just a judge, although the actions of the prosecutor/investigator should be monitored by the judiciary just as it would be in any other criminal investigation.

This is the key. The independent prosecutor should be authorized and accountable to the Congress. There is a role for the judiciary branch, too, but it lies in forcing the Congressionally authorized prosecutor to follow the laws.

Generally speaking, we’ve had remarkably little real abuse of power from presidents, and that’s allowed us to act like it could never happen. But Congress has to be given some power to hold the executive branch accountable, because the president just has too much power to ignore Congress as it is.

The preferred solution would be for Congress to simply refuse to fund an out-of-control president any more, which is all the power needed to bring just about any president down to earth. Unfortunately, that only comes into play when both houses of Congress are controlled by the opposite party from the president. The founders of the Constitution just didn’t anticipate the checks and balances of Congress against the president being rendered impotent by party loyalty.

Imagine if the House and Senate were both Republican-controlled, and the House simply refused to fund the EPA or the FCC until the president reeled them back in.

But because the Senate is controlled by Democrats, who are therefore loyal to the president, the House loses the only real power it has, the power to de-fund, without shutting the government down completely.

But because the Senate is controlled by Democrats, who are therefore loyal to the president, the House loses the only real power it has, the power to de-fund, without shutting the government down completely.

There Goes the Neighborhood on June 22, 2014 at 2:46 PM

With a little luck – God willing – and fewer LIVs, maybe that will change at the end of this year? The problem is even if that happens and we retake the Senate; it is so full of squishes like Maverick (In his own mind), Nancy Boy, Snow, Collins, MurCOWski, etc., it might not matter if we do. We wouldn’t want to make any waves you know? *Pukes*

Regarding the OP: the IRS! If we can’t stop these in your face abuses and hold the principal criminals accountable, our beloved democracy is on the way out.

Do I understand this in that what they are saying is that it is the Law that all “evidence of an incriminating nature of upper level management must be destroyed within 6 months of discovery of the criminal act”. After two years of discovery of the crime we are just now subpoenaed the evidence of the crime and then are shocked that it has all been destroyed some time ago.

This is appalling. No one in the world has such unprecedented protection from prosecution as do our elected officials and upper level bureaucrats. The true criminals in this are “We The People” who let them become this way.

In all of these culture of corruption after corruption NO ONE-NOT ANY ONE-NOT ONE SINGLE PERSON has been charged much less found guilty of even a minor breach of the law.

We have a political party that is solely based on lies and deceit. And another party that is based on I know not what.

Am I so wrong in this that no one else in the world can see what is happing here. In the old English law prior to the Magna Carta The king and the Nobelist could not be prosecuted, They were considered to be infallible. Is it just that we again have a King and Nobles? That can not be found with fault.

No it is that “We The People”, the peasants, the pawns the common man of society Must stand up to our suppressors and demand a new Magna Carta for the defense of American, she needs our help to survive.

WHO WHO WHO will stand up to lead. I have lung cancer with less then 6 months to live. All I ask from my country is to die knowing that my 50 years of service was not in vain. Is their anyone that will do more then lip service to this.